Lena v. People of the State of California et al

Filing 16

ORDER for Plaintiff to Respond to the Screening Order, signed by Magistrate Judge Sheila K. Oberto on 03/22/17.( 21-Day Deadline) (Attachments: # 1 Amended Complaint Form, # 2 Screening Order, dated 10/25/2016)(Martin-Gill, S)

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1 2 3 UNITED STATES DISTRICT COURT 4 EASTERN DISTRICT OF CALIFORNIA 5 6 MICHAEL ANGELO LENA, 7 Plaintiff, 8 9 Case No. 1:16-cv-01036-LJO-SKO (PC) ORDER FOR PLAINTIFF TO RESPOND TO THE SCREENING ORDER v. PEOPLE OF THE STATE OF CALIFORNIA, et al., 10 TWENTY-ONE (21) DAY DEADLINE Defendants. 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiff, Michael Angelo Lena, is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. ' 1983. On October 25, 2016, the Court issued a screening order regarding Plaintiff’s civil rights complaint, ordering Plaintiff file within thirty days to either file: (1) an amended complaint curing the deficiencies identified by the Court in its order, or (2) a notice that he would proceed on the two cognizable claims in his original complaint. (Doc. 8.) The Court further notified Plaintiff that his failure to comply with this order would result in dismissal of the action. (Id.) Plaintiff did not file a response to the screening order. On December 13, 2016, the Court issued an order to show cause (“OSC”) to Plaintiff directing him to explain his failure to comply with the response deadline in the Court’s October 25, 2016 screening order. (Doc. 9.) Plaintiff filed his response on December 27, 2016, informing the Court that he never received the Court’s October 25, 2016 screening order. (Doc. 10.) A review of the Court’s docket revealed no record that the screening order was served on Plaintiff. Thus, the OSC was discharged and the deadline for Plaintiff to respond to the screening order was reset. (Doc. 11.) However, rather than respond to the screening order, Plaintiff filed an appeal with the Ninth Circuit Court of Appeal. (Doc. 12.) The Ninth Circuit dismissed Plaintiff’s appeal 1 1 for lack of jurisdiction on March 20, 2017. (Doc. 15.) Thus, Plaintiff is required to respond to 2 the October 25, 2016 screening order. 3 Accordingly, it is HEREBY ORDERED that: 4 1. The Clerk’s Office shall send Plaintiff an amended complaint form and another copy of the October 25, 2016 screening order (Doc. 8); 5 2. 6 Within twenty-one (21) days from the date of service of this order, Plaintiff must 7 either: 8 a. File a first amended complaint curing the deficiencies identified by the Court in the October 25, 2016 screening order; or 9 b. 10 Notify the Court in writing that he is willing to proceed only on the two 11 claims found cognizable in the October 25, 2016 screening order for (i) 12 inhumane conditions of confinement, in violation of the Eighth 13 Amendment, against Doe Defendant Correctional Officers (“COs”), and 14 (ii) retaliation, in violation of the First Amendment, against Doe Defendant 15 COs; and c. 16 If Plaintiff files a notice that he is willing to proceed only on the cognizable 17 claims, he must include all information available to him to identify the Doe 18 Defendant COs for service of process (i.e. their physical descriptions, yards 19 and times of their interaction with Plaintiff, and any documents containing 20 their identities); 3. 21 If Plaintiff fails to comply with this order, the Court will recommend the action be dismissed for Plaintiff’s failure to obey a court order. 22 23 24 25 IT IS SO ORDERED. Dated: March 22, 2017 /s/ UNITED STATES MAGISTRATE JUDGE 26 27 28 Sheila K. Oberto 2 .

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